Thomas Donald v. Carol Spurlock

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

THOMAS DONALD

APPELLANT

V.

CAROL SPURLOCK

APPELLEE

CA03-198

November 19, 2003

APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT

[NO. 01-180-3]

HON. ROBERT C. VITTITOW,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

Appellant Thomas Donald filed a complaint in unlawful detainer against appellee Carol Spurlock in the circuit court of Ashley County. Appellee filed an answer and counterclaim, stating that she was lawfully in possession of the property under the terms of a contract entered into by the parties and requesting judgment against appellant for failure to abide by the terms of that contract. The trial court found that a valid contract existed between the parties, denied appellant's complaint in unlawful detainer, and awarded judgment against appellant for "all repairs needed," as required by the terms of the contract. It is from that decision that appellant brings this appeal, raising four allegations of error. We find no merit to his arguments and affirm.

Appellant and appellee met sometime around 1996 and became friends, dating off and on until sometime in 2000. The trial court found that appellant was fond of appellee's two teenage daughters, that the fondness was mutual, and that appellant gave the girls a monthly allowance. When the parties met, appellee lived in a mobile home with her daughters and

worked full time. The court found that appellant wanted to provide a nice home for appellee and her daughters and wanted appellee to stay home with the children and that, at appellant's urging, appellee agreed to sell the mobile home, quit her job, and move into a home purchased by him. It was at this time, around May of 1998, that the parties signed the written document that is the subject of this litigation, which was entitled "Agreement Contract" and related to appellee's possession of and interest in the home purchased by appellant. The trial court found that until sometime in 2000 appellant paid for all maintenance and upkeep of the home as well as insurance and mortgage payments and that appellant gave appellee at least $500 per week in addition to the allowance he gave the girls. The court noted that appellant testified that he thought he and appellee would be married, but that there was no indication that appellee shared that view. In 2000, appellant stopped giving money to appellee and her daughters and stopped paying for maintenance and repairs on the home. In October of 2001, he filed the unlawful detainer action.

In finding that the agreement signed by the parties was a valid contract, the trial court allowed parol evidence regarding the intent of the parties in making the contract and the consideration given by appellee. Appellee testified as to the relationship between the parties; appellant's desire for her to quit her job and his payment to her of a regular weekly or monthly amount after she did so; and his desire for her and her daughters to have a nicer home. Appellee testified that appellant was willing to buy a home for her and her daughters to live in. Appellant purchased the house in question, and appellee said that she then sold her mobile home, quit her job, and moved her family to another city based upon the agreement she had with him that she would move into that home. Appellant argues that there was no element of consideration in the agreement between the parties and that the trial court erred in allowing parol evidence.

Where a contract is plain, unambiguous and complete in its terms, parol evidence is not admissible to contradict or add to the written contract. Brown v. Aquilino, 271 Ark. 273, 608 S.W.2d 35 (Ark. App. 1980). The "parol evidence rule" is a rule of substantive law in which all antecedent proposals and negotiations are merged into the written contract and cannot be added to or varied by parol evidence. Id. On the other hand, the parol evidence rule does not prohibit the introduction of extrinsic evidence where it would aid the court in interpreting the meaning of particular language of a contract, nor does it prohibit the court's acquainting itself with the circumstances surrounding the making of the contract. First Nat'l Bank of Crossett v. Griffin, 310 Ark. 164, 832 S.W.2d 816 (1992).

In Brown, supra, we recognized the rule that where the consideration clause is itself a part of the written contract, oral evidence is not admissible to vary or contradict the written part. We cited Harris v. Trueblood, 124 Ark. 308, 186 S.W. 836 (1916), in which parol evidence regarding a promise not to compete was not admissible because there was a written contract reciting all of the considerations, which were of a contractual nature, and the introduction of the parol evidence would vary the terms of the contract itself. Where, however, testimony is offered to prove an independent collateral fact about which the contract is silent, the parol evidence rule is not applicable. Brown, supra (citing Lane v. Pfeifer, 264 Ark. 162, 568 S.W.2d 212 (1978)). In Gilbert v. Rainey, 77 Ark. App. 44, 71 S.W.3d 66 (2002), we held that while parol evidence may not be used to contradict recitals of consideration in a deed, it may be allowed to show that the consideration has not been paid as recited or to establish that other consideration not recited in the deed was agreed to be paid, if it does not contradict the terms of the writing. In Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997), our supreme court stated that while the parol evidence rule prohibits the introduction of extrinsic evidence to vary the terms of a written agreement absent an ambiguity in the contract's terms, the rule does not prohibit a trial judge from becoming familiar with the circumstances surrounding the making of a contract.

The "Agreement Contract" signed by the parties reads as follows:

I, James Thomas Donald, and I, Carol Lynn Spurlock do hereby this the 5th day of May, 1998, enter into this legal binding agreement being both of sound mind. Both parties agree that James Thomas Donald purchased a house located at 1108 Hickory Street, Crossett, Arkansas, 71635. It remains a mutual agreement that on or about May 5, 1998, Carol Lynn Spurlock shall move into this residence. James Thomas Donald agrees to pay to maintain the residence including any and all repairs needed and all insurances and payments of said house. Carol Lynn Spurlock shall live in and have total possession of this house. In the event that James Thomas Donald should expire, then said balance of mortgage of house shall be paid in full from the proceeds of his estate. Upon marriage of Carol Lynn Spurlock this agreement shall become null and void with the full and total understanding that each party will have the option to buy the other's one half the equity of value [sic] place[d] on the home at the time of purchase.

The parol evidence in this case was not admitted in order to vary or contradict the consideration recited on the face of the deed. Rather, it was offered to prove that appellant had agreed to purchase the home for appellee and her daughters to live in, in exchange for her quitting her job, selling her mobile home, and relocating her family to that house. On appeal, we will not reverse the trial judge's ruling allowing or disallowing evidence absent an abuse of discretion. Id. We find no such abuse of discretion in this case.

In order for a contract to exist, there must be: (1) competent parties; (2) subject matter; (3) legal consideration; (4) mutual agreement; and (5) mutual obligations. Kearney v. Shelter Ins. Co., 71 Ark. App. 302, 29 S.W.3d 747 (2000). Consideration is any benefit conferred or agreed to be conferred upon the promisor to which he is not lawfully entitled, or any prejudice suffered or agreed to be suffered by the promisor, other than such as he is lawfully bound to suffer. Id. The trial court found that the parties entered into a valid contract, whereby appellant was to furnish and maintain a house for appellee and her daughters, and appellee was to sell her mobile home, move into the home purchased by appellant with her daughters, and make herself and her daughters available for friendship. We find no error in the trial court's conclusion that the contract was supported by legal consideration.

Appellant also argues that appellee breached the terms of the contract she sought to enforce by moving into the house with her children. Appellant relies on the contract language that " . . . Carol Lynn Spurlock shall move into this residence," to argue that she and she alone was to move into the residence. This is a spurious argument. The language of the contract does not require appellee alone to move into the residence, and given the testimony regarding appellant's fondness for appellee's daughters and his concern that they have a nicer home, it is disingenuous for appellant to now argue that appellee breached the contract by keeping her two minor children with her when she moved into the residence.

The trial court found that appellant was fond of appellee's daughters, that he wanted appellee to stay home with her children, and that he desired a nicer home for appellee and the children. Further, he gave the girls a monthly allowance and agreed to provide and maintain a house for appellee and her daughters. The test on appeal is whether the findings of the trial judge are clearly erroneous. Estate of Sabbs v. Cole, 57 Ark. App. 179, 944 S.W.2d 123 (1997). In our review, we will defer to the trial court's evaluation of the credibility of the witnesses. Bellis v. Bellis, 75 Ark. App. 213, 56 S.W.3d 396 (2001). We cannot say the trial court was clearly erroneous in finding that appellee had not breached the terms of the contract.

Appellant's final argument is that the trial court erred in finding that appellee had pled the affirmative defense of estoppel. At trial, counsel for appellant objected to any claim of promissory estoppel, stating that there were no allegations as to a cause of action for promissory estoppel in appellee's pleadings. The trial judge replied that estoppel is an affirmative defense and must be pled. Appellee's attorney stated that all his testimony would be to the validity ofthe contract, and the hearing proceeded. In its letter opinion, the trial court found that appellant was estopped from attacking the validity of the document, explaining that it had been under the impression that appellee did not plead the affirmative defense of estoppel, but that a review of the file indicated that impression was false.

Pleadings are to be liberally construed. Clayborn v. Bankers Standard Ins. Co., 348 Ark. 557, 75 S.W.3d 174 (2002). Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.; Ark. R. Civ. P. 8(a). We look to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Ray & Sons Masonry v. United States Fidelity & Guaranty Co., Ark. , 114 S.W.3d 189 (May 15, 2003). The record herein reflects that appellee's answer and counterclaim provided: "5. Plaintiff is estopped from claiming said lands occupied by the defendant and plaintiff is guilty of [laches]." A review of the record reveals that appellee's complaint, counterclaim, and affidavit set forth facts to support the estoppel cause of action. We cannot say the court was clearly erroneous in finding that appellee had sufficiently pled the affirmative defense of estoppel. See Ark. R. Civ. P. 52.

Affirmed.

Stroud, C.J., and Baker, J., agree.